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SPEECH OF HON'BLE MR. JUSTICE VIJENDER

JAIN, CHIEF JUSTICE, PUNJAB AND HARYANA
HIGH COURT, CHANDIGARH IN A SEMINAR OF
ASIA PACIFIC JURIST ASSOCIATION (APJA) ON
“SAFEGUARDING THE TRADITIONAL
KNOWLEDGE IN INDIA” ON 28.04.2008 IN DELHI.
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Traditional Knowledge (TK) is essentially

culturally oriented or culturally based, and it is integral to the
cultural identity of the social group in which it operates and is
preserved. “Traditional knowledge” is an open-ended way to
refer to tradition-based literary, artistic or scientific works;
performances; inventions; scientific discoveries; designs;
marks, names and symbols; undisclosed information; and all
other tradition-based innovations and creations resulting from
intellectual activity. The definition of traditional knowledge
used by the World Intellectual Property Office (WIPO)
includes indigenous knowledge relating to categories such as
agricultural knowledge, medicinal knowledge, biodiversity-
related knowledge, and expressions of folklore in the form of
music, dance, song, handicraft, designs, stories and artwork.

Process leading to the creation of TK may not be

formally documented in the way that much scientific and
technological information is recorded. The apparent non-
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systematic manner of creation of traditional knowledge, does
not diminish its cultural value, or its value from the point of
view of technical benefit.

In recent years concern has been expressed in

relation to the recognition of traditional knowledge as prior
art. Patents have been granted for traditional knowledge-
related inventions which did not fulfill the requirements of
novelty and inventive step when compared with the relevant
prior art. This prior art consisted of traditional knowledge
that could not be identified by the patent-granting authority
during the examination of the patent application. The term
“prior art” generally refers to the entire body of knowledge
which is available to the public before the filing date of an
application for certain industrial property titles, principally
patents, utility models and industrial designs. The
identification of prior art constitutes a cornerstone for the
substantive examination of applications for these titles, since
requirements such as novelty and inventive step are
established by comparing the claimed subject matter with the
relevant prior art.

For example, pharmaceutical patents were granted

which had to be revoked, once the patented invention was
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compared with the teaching of traditional medicine which
constituted relevant prior art. A well-known example is US
on Use of Turmeric in Wound Healing, issued March 28,
1995.

Turmeric (Curcuma longa) is a plant of the ginger

family yielding saffron-colored rhizomes used as a spice for
flavoring Indian cooking. Its unique properties also make it an
effective ingredient in medicines, cosmetics and as a color
dye. As a medicine, it is traditionally used to heal wounds and
rashes.

In March 1995, two expatriate Indians at the

University of Mississippi Medical Centre, Jackson, (Suman K
Das and Hari Har P. Cohly) were granted a US patent for
turmeric to be used to heal wounds.

The European Patent Office (EPO) revoked in its

entirety Patent number 436257, which had been granted to the
United States of America and the multinational corporation
W.R. Grace for a fungicide derived from seeds of the Neem
tree.
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The broad development underlying this issue is that,
as the reach of the intellectual property system in the global
information society extends to new stakeholders, such as
indigenous and local communities, their knowledge base,
including in particular their traditional knowledge, constitutes
an increasingly relevant body of prior art, the effective
identification of which is of increasing importance for the
functioning of the intellectual property system. Traditional
knowledge documentation data constitutes an important form
of non-patent literature with specific characteristics. Some of
those characteristics may necessitate specialized measures for
traditional knowledge data to be adequately integrated and
recognized as relevant non-patent literature.

The development of new technology and the new

use of traditional knowledge based products today is the
major threat to the survival of many of these communities.
The modern cultural industries as well as the manufacturing
industries now commercially exploit the traditional
knowledge based products using new technology without the
permission and sharing of profits with the communities. It is
possible today to bring out new products or find out new use
of existing products based on traditional knowledge utilizing
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the technological developments in the field of biotechnology.
This is proved beyond doubt particularly in the field of
medicines, agriculture etc. The development of new products
or new use of existing products enable the industries to get
protection for these products through the formal intellectual
property laws.

Traditional knowledge is generally associated with

biological resources and is invariably an intangible
component of such a biological resource. Traditional
knowledge has the potential of being translated into
commercial benefits by providing leads/ clues for
development of useful practices and processes for the benefits
of mankind. The valuable leads/clues provided by TK save
time, money and investment of modern biotech and other
industries into any research and product development.
Logically, therefore, a share of such benefits should accrue to
the creators and/or holders of such traditional knowledge.
Some countries have specific legislation protecting this kind
of knowledge while some other countries feel their existing
IPR regime protect such knowledge. A regional policy has to
be developed for the protection of indigenous knowledge
related to biodiversity which includes agriculture, medicinal,
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ecological related knowledge; and also for the protection of
other traditional knowledge relating to folklore.

“Jeevani” is a restorative, immuno-enhancing, anti-

stress and anti-fatigue agent, based on the herbal medicinal
plant arogyapaacha, used by the Kani tribals in their
traditional medicine. Within the Kani tribe the customary
rights to transfer and practice certain traditional medicinal
knowledge are held by tribal healers, known as Plathis. The
knowledge was divulged by three Kani tribal members to the
Indian scientists who isolated 12 active compounds from
arogyapaacha, developed the drug “Jevaani”, and filed two
patent applications on the drug (and another patent based on
the same plant but for different use). The technology was
then licensed to the Arya Vaidya Pharmacy, Ltd., an Indian
pharmaceutical manufacturer pursuing the commercialization
of Ayurvedic herbal formulations. A Trust Fund was
established to share the benefits arising from the
commercialization of the TK-based drug “Jevaani”. The
operations of the Fund with the involvement of all relevant
stakeholders, as well as the sustainable harvesting of the
arogyapaacha plant, have posed certain problems which offer
lessons on the role of intellectual property rights in benefit-
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sharing over medicinal plant genetic resources and traditional
medicinal knowledge.

The current IPR system cannot protect traditional

knowledge for three reasons. First, the current system seeks to
privatize ownership and is designed to be held by individuals
or corporations, whereas traditional knowledge has collective
ownership. Second, this protection is time-bound, whereas
traditional knowledge is held in perpetuity from generation to
generation. Third, it adopts a restricted interpretation of
invention which should satisfy the criteria of novelty and be
capable of industrial application, whereas traditional
innovation is incremental, informal and occurs over time. A
sui generis,or alternative law, is therefore necessary to protect
traditional knowledge.

The Convention on Biological Diversity is the first

international agreement acknowledging the role and
contribution of indigenous and local communities in the
conservation and sustainable use of biodiversity.

The Convention imposes general obligations

relevant to the conservation, sustainable use, sharing of
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information on, and equitable sharing of benefits derived from
biodiversity.

Each party has an obligation (subject to their

particular national circumstances) to develop national
legislation as far as possible and as appropriate in order to:

- respect, preserve and maintain knowledge, innovations

and practices of indigenous and local communities
embodying traditional lifestyles relevant for the
conservation and sustainable use of biological diversity
and

- promote their wider application with the approval and

involvement of the holders of such knowledge,
innovations and practices and encourage the equitable
sharing of the benefits arising from the utilization of
such knowledge, innovations and practices.

Thus it is clear that there is a general agreement

within the international community that there is a need to
recognize the traditional knowledge. The concern is to
recognize it, take measures to ensure that communities are
involved in the preservation and development of it and proper
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benefits return to them in case of commercial exploitation by
others. But the method of achieving it is left to individual
nations. But there are no uniform norms regarding the
protection of different types of traditional knowledge owned
by local communities. The reasons being that the
international community never had an occasion to look at the
protection of traditional knowledge in its entirety.

Recently amended patent law of India contains

provisions for mandatory disclosure of source and
geographical origin of the biological material used in the
invention while applying for patents in India. Provisions have
also been incorporated to include non- disclosure or wrongful
disclosure of the same as grounds for opposition and for
revocation of the patents, if granted.

Documentation of traditional knowledge is also

acknowledged as a means of giving due recognition to the
traditional knowledge holders. This particular aspect of
documenting formulations in the Ayurvedic system of
medicine in India in the shape of Traditional Knowledge
Digital Library (TKDL) is already on. The scope of the
TKDL work relates to the transcription of 35,000
formulations used in Ayurvedic system of medicines. These
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details are being converted into Patent Application Format
and will include description, method on the preparation,
claim and the usage of the bibliography. The retrieval will be
based on the Traditional Knowledge Resource Classification
(TKRC) and International Patent Classification (IPC). The
original Sanskrit text is translated and presented in French,
German, English, Japanese, Spanish and Hindi through unit
code technology that is language independent.

But I feel that a sui generis system separate from

the existing IPR system should be designed to protect the
traditional knowledge of the local and indigenous
communities of India.

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